Rajendra Chaudhary vs 1. The State Of Jharkhand 2. Wakil Choudhary

Pradeep Kumar Srivastava, J.

The instant criminal appeal is preferred by the appellant being aggrieved and dissatisfied with judgment of conviction and order of sentence dated 12.09.2005 for the offence under Sections 304B of the IPC passed by learned 4^th Additional Dist. & Sessions Judge, F.T.C., Dumka in Sessions Case No. 109 of 2002/388 of 2003 whereby and whereunder, the appellant has been convicted and sentenced to undergo R.I. for nine years for the offence under Section 304B of the IPC.

Heard the arguments of learned counsel for the appellant and learned APP.

The factual matrix giving rise to this appeal is that informant’s daughter (since deceased) was married to accused Rajendra Chaudhary as per Hindu Rites and Customs in Basukinath Temple two years prior to the occurrence. It is alleged that informant’s daughter after marriage lived happily at her matrimonial home for sometime but thereafter, the husband and father-in-law of the deceased used to ask her to bring a pump-set for irrigation purpose and due to non-fulfillment of the same, the deceased was subjected to assault and cruelty. It is alleged that on 30.12.1999, at about 10:00 PM, villagers of Baijandih namely Chandan Panjiyara, Gultan Panjiyara and Sikander Pandiyara came to the house of informant and informed that his daughter after returning from work in field could not speak anything and suddenly died. Upon this, the informant, his son-Pradeep Yadav, his naphew-Awadhesh Yadav and other villagers came to the house of deceased and saw the dead body of the informant’s daughter lying in front of house of accused person. It is stated that informant did not find any injury on the body of his daughter but found foam was coming out from her mouth and nose. It is stated that informant’s son-in-law and his father told him that deceased had gone to work in the field in the morning and returned and sat in the gallery of house and she was shivering and fell down and became unconscious. The accused persons took her to hospital for treatment but on the way, she died. The accused persons did not disclose the reason of the death but it was suspected by the informant that poison was administered to the deceased by his son-in-law and his father.

On the basis of above written report of the informant, Jarmundi P.S. Case No. 173 of 1999 was registered for the offence under Section 304B/34 of the IPC against the accused persons.

After completion of investigation, charge sheet was submitted against above accused persons.

After taking cognizance, the case was committed to the Court of Sessions, where Sessions Case No. 109 of 2002/388 of 2003 was registered. Charges were read over and explained in Hindi to accused persons to which, they pleaded not guilty and claimed to be tried.

In course of trial, mother-in-law of deceased died, hence, the trial against her was dropped.

After conclusion of the trial, impugned judgment and order of conviction and sentence has been passed by the learned trial Court, which has been assailed in this appeal.

Learned counsel for the appellant assailing the impugned judgment of conviction and sentence, has argued that the allegation made against the accused persons that after the marriage, informant’s daughter was tortured and subjected to cruelty due to non-fulfilment of demand of dowry has not been supported by any independent witnesses examined in this case. It is further submitted that the prosecution has also failed to take into consideration that there was tense relationship of the deceased with the first wife of the accused Rajendra Chaudhary which may be cause for commission of suicide. It has also been submitted that the accused Rajendra Chaudhary was initially married with one Sarita niece of the informant and since no child was born, the accused Rajendra Choudhary solemnized marriage with the deceased without getting divorce from the first wife hence being not married, there was no case of dowry death. The learned trial Court has also failed to consider the above vital aspects of the case, which clearly shows that no offence under Section 304B IPC is made out against the appellant and wrongly recorded findings of guilt and convicted and sentenced him. The finding of the learned trial Court is based upon irrelevant evidence, conjecture, surmises and beyond the weight of evidence available on record. Therefore, impugned judgment of conviction and sentence of the appellant is liable to be set aside and the appellant deserves to be acquitted from the charges leveled against him. Hence, this appeal may be allowed.

On the other hand, learned A.P.P. appearing for the State opposing the aforesaid contentions raised on behalf of the appellant, has submitted that the prosecution has conclusively proved that the deceased died under abnormal circumstances at her matrimonial home and the death occurred within seven years of her marriage as deceased was administered poison by the husband and her in-laws. It is also proved beyond doubt that the husband of the deceased was very much instrumental in demanding a pump set as dowry and due to non-fulfilment of same, deceased was subjected to torture and cruelty physically and mentally, at the hands of her husband and in-laws. Therefore, the prosecution has proved all the four foundational facts invoking the definition of offence of “dowry death” under Section 304B of the IPC. The learned trial Court has committed no error of law in invoking the presumption of dowry death under Section 113B of the Indian Evidence Act against the appellant. There are unrebutted, cogent and reliable evidence on record to conclusively prove the guilt of the appellant. There is no reason to take a different view than the learned trial Court. This appeal has no merits and fit to be dismissed.

I have gone through the record along with the impugned judgment in the light of rival contentions raised on behalf of the parties.

It appears that the prosecution has examined altogether 6 witnesses in this case.

P.W.-1 Awadhesh Yadav (Cousin Brother of the deceased) P.W.-2 Pradeep Kumar (Brother of the deceased) P.W.-3 Dr. Shesh Narayan Jha P.W.-4 Kumud Yadav (Cousin Brother of the deceased) P.W.-5 Wakil Choudhary (Informant) P.W.-6 Brij Bihari Kumar (I.O.)

Apart from oral testimony of the witnesses, the prosecution has adduced following documentary evidence:-

Ext. 1 Signature of Pradeep Kumar Yadav on Inquest Report Ext. 2 Post-Mortem Report Ext. 3 Signature of informant on Written Report Ext. 4 Written Report Ext.-5 Inquest Report

On the other hand, no oral or documentary evidence has been adduced on behalf of the defence.

The sole point for determination in this appeal is “as to whether the impugned judgment of conviction and sentence of the appellant suffers from any error of law, which requires any interference in this appeal”?

Before imparting verdict on the above point, it appears necessary to take brief resume of ocular testimony of witnesses examined in this case. P.W.1 Awadhesh Yadav has deposed that his cousin sister namely Chandrika Devi was married with accused Rajender Choudhary in Basukinath temple in the year 1997. He has stated that after the marriage both husband and wife lived together peacefully and their matrimonial life was satisfactory. Thereafter, the father-in-law and husband of Chandrika Devi demanded pump-set from the father of the Chandrika Devi and they tortured her due to non-fulfilment of their demand. He has stated that he told them that their financial position is not strong. So, they could not fulfill their demand. But after sometime, when they would collect money, they would give him a pump-set. He has further stated that on 30.12.1999, in the night, at about 10 p.m,. one Chandan Panjiyara and Gultan Panjiyara came at his house and they told him that his cousin sister Chandrika Devi has died, then on the next day, he along with his uncle and others went at village Baijandih where they found his cousin sister was lying dead on a courtyard in front of the door of the accused persons. He has stated that they found forth was coming out from her mouth and nose. When they made inquiry about the cause of death, then her in-laws told them that she had gone at the field and when she returned, she died. He has stated that his cousin sister Chandrika Devi had no any Child. He has stated that accused Rajendra Yadav was married with his sister namely Sharita Devi 10 years ago and when she did not give birth any child, then accused Rajendra Choudhary solemnized his marriage with Chandrika Devi. He has further stated that the said Sharita Devi is living with him at his house. P.W.2 Pradeep Kumar Yadav has deposed that his sister Chandrika Devi was married with Rajendra Choudhary in the year 1997 in the Basukinath temple and after her marriage with accused, she remained quite well at her matrimonial house near about 2 years. But thereafter, the accused persons began to make demand from her a pump-set. He has stated that due to non-fulfillment of the demands of the accused persons, they used to assault his sister and this fact was disclosed to him by his sister. He has further stated that on 30.12.1999, Chandan Panjiyara and others came at his house and informed that his sister has died, then they went at the matrimonial house of her sister where they found dead body of his sister Chandrika Devi was lying on a courtyard in front of the main door of the house. She has stated that the dead body of his sister was covered by a wrapper and when they removed wrapper from her body, they saw forth was coming up from her mouth and nose. He has stated that his sister could not be blessed with any child. He has further stated that accused previously married with his cousin sister namely Sharita Devi 10 years ago of the occurrence and the said Sharita Devi was also not blessed with any child. He has stated that his cousin sister Sharita Devi is living at his house.

He has proved his signature on the inquest-report prepared by the police which has been marked as Exbt. 1.

P.W.3 Dr. Shesh Narayan Jha has conducted post-mortem examination over the dead body of Chandrika Devi (deceased) on 31.12.1999. He has stated that rigor mortis present in both upper and lower limbs. Eyes partially opened. Mouth closed. About 50 M.L. yellowish fluids present in stomach. No ante-mortem or post-mortem injury found over the body of the deceased. He has stated that no definite opinion can be given regarding cause of death. Hence, the following viscera were preserved in for chemical examination (i) Stomach with its contents (ii) One kidney (iii) Spleen (iv) A portion of liver (v) A loop of small intestine.

He has proved the carbon copy of the post-mortem report which is marked as Exbt. 2 This witness has stated in his evidence that Yellowish contents of the stomach may be poison to be confirmed by chemical analysis. He has further stated that some poison which cause death on ingestion (taking by mouth) may evaporate which disappear from stomach.

In the cross-examination, he has stated that there was no obvious sign of poison. He has further stated that duration of evaporation of a volatile poison depends upon his nature. He has stated that since he did not find any clear cause of death, hence he preserved viscera.

P.W.4 Kumud Yadav has stated that his cousin sister namely Chandrika Devi was married with Rajendra Choudhary in the year 1997 at Basukinath temple. He has stated that his sister died on 30.12.99 and they were informed by Chandan Panjiyara and others on that day at about 10 p.m. in the night. He has stated that on 31.12.99, they went at the house of the accused persons where they found his sister Chandrika Devi was lying dead in front of the main door of the house of accused persons. He has stated that foam was coming out from her mouth and nose. He has stated that when they asked from the accused persons about the cause of her death, then they replied that she had gone to work in the field and she came there and died. He has stated that both accused persons used to demand a pump-set from his sister and they also used to assault her. He has stated that his sister told him and also to his uncle about this occurrence. He has stated that his uncle gave assurance that he would give pump-set after 2-3 months. But due to his poor financial condition, he could not give them pump-set, then the accused persons administered poison to his sister.

P.W.5. Wakil Choudhary is the informant of this case. He has stated that his daughter Chandrika Devi was married with accused Rajendra Choudhary, s/o Babu Choudhary, resident of Village Baijandih, two years ago in the Basukinath temple. He has stated that after marriage his daughter went to her sasural. He has stated that Chandan Panjiyara, Gultan Panjiyara and Sikander Panjiyara told him that his daughter has died, when he asked about the cause of her death, then they replied that she was working in the field along with her husband and her father-in-law and they cannot say how she died. He has stated that on the next day, he went at the house of his daughter where he saw that her daughter was lying dead in front of her house. He has stated that he did not find any mark or injury on her body but he found a dry forth in her mouth and foam was throwing up. When he asked from his son-in-law and the father of his son-in-law about the occurrence, then they replied that she was working in the field along with them and all of sudden, she began trembling, then they proceeded for her treatment. But she fell down at his door. He has stated that prior to the occurrence, his daughter told him that her husband demanded pump-set and used to assault her. He has stated that he believes that accused persons administered poison to his daughter and killed her. He has further stated that his son-in-law was married with his niece namely Sharita Devi 10 years ago and when she did not give birth of any child, then his son-in-law told him that he will marry with another woman, then the accused married with his daughter. He has proved his signature on his written-report which is marked as Ext. 3. This witness has also stated that before one month of occurrence, his daughter had come to her parental home.

In his cross-examination, this witness has denied the suggestion of the defnece that he has given false statement and there was no demand of dowry.

P.W.6 Brij Bihari Kuwar is the investigating officer of this case. He has proved the endorsement made by Officer-In- charge on the written-report of the informant which is marked as Ext. 4. According to this witness, the place of occurrence is the residential house of accused Rajendra Choudhary which is a soil built wall thatched by tiles, located at village, Baijandih, P. S. Jarmundi, District Dumka. He has stated that the main door of the house opens towards South. He has stated that on the western side of the house, there is Kitchen Garden where the deceased was working along with the accused persons before her death. He has stated that this field is adjacent to the house of the accused persons. He has stated that there is a well in this Kitchen Garden where he found a motor pump was set. He has given the detail boundary of the place of occurrence land. He has stated that he found the dead body of the deceased at the side of the house of the accused persons which was lying on a courtyard. He has proved the inquest report of the dead body of the deceased which is marked as Ext. 5. He has stated that probably the viscera has not been sent for its examination.

The present appellant in his defence has pleaded his innocence and committed no offence at all.

Before imparting verdict on the basis of evidence available on record, the relevant provisions of law are required to be reproduced hereinbelow:-

From bare perusal of Section 304B of the IPC (Section 80 of B.N.S., 2023), it is obvious that following ingredients have to be proved by the prosecution as foundational facts for invoking the offence of dowry death:-

When the above ingredients are established by reliable and acceptable evidence, such death shall be called dowry death and such husband or his relatives shall be deemed to have caused her death and once the prosecution establishes aforesaid ingredients, the burden of proof radically shifts to the defence due to strict statutory presumption.

The provision of section 304-B of IPC as regards cause of death does not categorize death as homicidal, suicidal or accidental rather any death occurring “otherwise than under normal circumstances” may attract the provision of section 304-B of IPC, if other ingredients are fulfilled.

In the instant case, the death of the deceased as per the evidence of prosecution witnesses including brother and father is due to administration of poison by the husband resulting in her death and it has happened otherwise than under normal circumstance which confirms the first requirement of Section 304B of the IPC.

The second requirement is also proved by establishing that the deceased was married with the appellant in the year, 1997 at Basukinath Temple and she died under unnatural death on 30.12.1999 i.e. within 7 years of marriage.

So far as, third and fourth conditions are concerned, there is consistent evidence of P.W.-1, P.W.-2, P.W.-4 and P.W.-5 (informant-cum-father) that husband of the deceased was demanding a pump-set for irrigation purpose and due to non-fulfilment of the same, the husband of the deceased used to harass and torture the deceased in various ways. The other witnesses have also corroborated the factum that deceased was married with the present appellant in the year, 1997. Thereafter, her husband started demanding a pump set and due to non-fulfilment of same, she was being tortured and harassed by her husband. The unrebutted testimony of aforesaid witnesses also proves the ingredients nos. (iii) and (iv).

Therefore, from the evidence of witnesses examined in this case as discussed above, it is crystal clear that presumption under Section 113B of the Indian Evidence Act against the husband (appellant) has legitimately raised by the learned trial Court for convicting him for the offence under Section 304B of the IPC.

In view of above discussion and reasons, I do not find any illegality or infirmity in the impugned judgment of conviction and sentence of the appellant-husband calling for any interference in the appeal. Accordingly, the judgment of conviction and sentence passed by the learned trial Court against the husband of the deceased (appellant) for the offence under Section 304B of the IPC is hereby confirmed and upheld.

In result, this appeal is dismissed. Consequently, the suspension of sentence granted to appellant vide order dated 22.11.2005 during pendency of this appeal, is hereby cancelled and he is directed to surrender before the learned Trial Court within two months from the date of this Judgment and undergo the remaining period of sentence awarded to him by the learned trial Court, failing which, the learned trial Court shall take all coercive steps for arrest and detention of the appellant for sustaining the remaining period of sentence awarded to him.

Pending I.A(s), if any, is also disposed of, accordingly.

Let a copy of this judgment along with Trial Court Records be sent back to the court concerned for information and needful.